Obama administration won’t defend Defense of Marriage Act

Liz Goodwin

The LookoutFebruary 23, 2011

The Obama administration has decided part of the Defense of Marriage Act is unconstituitonal, and says it won't defend it in two pending lawsuits.

"The President has concluded that given a number of factors, including a documented history of discrimination, classifications based on sexual orientation should be subject to a more heightened standard of scrutiny," Attorney General Eric Holder said in a statement. "The President has also concluded that Section 3 of DOMA, as applied to legally married same-sex couples, fails to meet that standard and is therefore unconstitutional. Given that conclusion, the President has instructed the Department not to defend the statute in such cases."

DOMA prevents the federal government from recognizing same-sex marriage and was passed under President Bill Clinton in 1995.

One of the cases the U.S. government will no longer defend is Windsor v. United States, where a woman in a committed relationship with her same-sex partner for more than 40 years was taxed when her partner died as if they were strangers because the federal government did not recognize their union.

Holder says members of Congress may step in to defend DOMA in the cases, and the Justice Department will continue to monitor the cases. The Obama administration will also continue to enforce the law unless it is repealed or struck down by the courts.

Gay rights advocates hoped the Obama administration would also refuse to defend the military's ban on gays in the military, but the DOJ continued defending the statute though Congress overturned it last December.

(A same sex couple marries in California in 2008 before the practice is banned: AP)